tutions and statutes of the several states in case of the state courts. But it does not follow from this that the common law and equity have nothing to do with fixing the jurisdiction of the courts. When jurisdiction is conferred by the constitution, or by statute, upon the courts of superior jurisdiction, it is generally provided that such courts shall have jurisdiction in all cases at law and in equity, or in one or the other, as the case may be, without attempting to enumerate, specifically, the cases over which jurisdiction shall extend. So with reference to admiralty and maritime cases.

Thus, for example, the constitution of the United States provides that "the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction," etc. And courts of general jurisdiction have and exercise common law jurisdiction. The grant of jurisdiction must proceed from competent authority. It can not be conferred by an unconstitutional act of the law-making power.3 Nor can jurisdiction of the subject-matter be given by consent of the litigant parties. Jurisdiction of the state courts is derived from the constitution and laws of the states, and can not be conferred by congress or by the laws of another state.

6

Jurisdiction may be exercised according to the rules of the common law, or by special direction, or informally. And the specific manner in which jurisdiction shall be exercised may be provided by statute, and if so it can be exercised in no other way."

In the absence of some statutory provision authorizing it, none but judges, or other judicial officers, can exercise

3

Const. U. S., Art. III, sec. 2.

Freeman on Judg., secs. 119, 120.

2 Wells' Jur., sec. 67.

Post, sec. 12.

Missouri Riv. Tel. Co. v. First Nat'l Bank, 74 Ill. 217.

"Smiley v. Sampson, 1 Neb. 70.

7

Post, sec. 20.

judicial functions, even with the consent of parties interested. But some such statutory provisions exist.2

In some of the states statutory provisions authorizing the holding of courts by attorneys have been held to be unconstitutional.3

11. HOW JURISDICTION OBTAINED.-The power to hear and determine a cause is conferred by law, as we have seen.* But something is necessary to put this power in motion, and call for the action of the court. This can not be done, with respect to the subject-matter, by the mere consent of the parties."

Jurisdiction of the subject-matter is obtained by the filing of such a pleading or petition as will bring the action within the authority of the court."

It is not necessary that the pleading shall state a cause of action, or be so drawn as to withstand a demurrer, but it must be sufficient to show that the subject-matter of the action is within the jurisdiction of the court. By this is not meant that it must be alleged in terms that the court

1

Ante, sec. 1; Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 Ill. 601; Meredeth v. The People, 84 Ill. 479.

2 Thus in Indiana provision is made for the selection of an attorney to hold court. Rev. Stat. Ind. 1881, sec. 1364. And in California, to try cases with the consent of parties. Code Civil Pro., sec. 72.

3 Van Slyke v. Trempealeau County F. M. F. Ins. Co., 39 Wis. 390; 20 Am. Rep. 50.

Ante, sec. 10.

5 Free. on Judg., sec. 120; Mills v. Commonwealth, 13 Pa. St. 629; Horton v. Sawyer, 59 Ind. 587; Doctor v. Hartman, 74 Ind. 221; post,

sec. 12.

6"The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a case is presented which brings this power into action. But before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred, and that such person or thing has been properly brought before the tribunal to answer the charge." Sheldon v. Newton, 3 Ohio St. 499; Spoors v. Coen, 44 Ohio St. 502; 9 N. E. Rep. 132; Munday v. Vail, 34 N. J. Law, 422; Callen v. Ellison, 13 Ohio St. 446; 82 Am. Dec. 448.

7 Campbell v. West, 86 Cal. 200; 24 Pac. Rep. 1000; McKeever v. Bail, 71 Ind. 404.

has jurisdiction. Usually the statement of facts shows the case to be one within the jurisdiction of the court. And it must be remembered that if a court is one of general jurisdiction, its jurisdiction over the subject-matter will be presumed. And where it does not affirmatively appear on the face of the complaint that the subject-matter is not within the jurisdiction of the court, it must be shown by answer. It is otherwise if the court is one of inferior or special jurisdiction.2

It is the pleading on the part of the plaintiff that determines whether the court has jurisdiction or not, and not the defense.3

Where a special statutory mode of acquiring jurisdiction is provided, that mode must be followed or the proceedings will be void.

Sometimes certain jurisdictional facts must appear in order to give the court jurisdiction, as in case of the federal courts, whose jurisdiction depends upon the place. of residence of the parties to the action. In such cases, the facts necessary to give the court jurisdiction must be alleged in the pleading of the party bringing the action. Jurisdiction of the person is obtained by service of process, or by voluntary appearance of the party, or by some other means authorized by law."

Jurisdiction of the res is obtained by its seizure under process of the court, or by acts which are of equivalent import, and which stand for and represent the dominion. of the court over the thing, and in effect subject it to the control of the court. But in order to make such juris

2

1 Post, sec. 22; Callen v. Ellison, 13 Ohio St. 446; 82 Am. Dec. 448.

4

Post, secs. 22, 23, 25.

3 Wells' Jur., sec. 4.

Post, secs. 20, 25; Clark v. Thompson, 47 Ill. 25; 95 Am. Dec. 457. Foster's Fed. Prac., sec. 66; Denny . Pironi, 141 U. S. 121; 11 S. Ct. Rep. 966; Timmons v. Elyton Land Co., 139 U. S. 378; 11 S. Ct. Rep.

585.

6

Post, sec. 13; Freeman on Judg., sec. 119; Callen v. Ellison, 13 Ohio

St. 446; 82 Am. Dec. 448.

Post, sec. 14; Freeman on Judg., sec. 119; Cooper v. Reynolds, 10

Wal. 308.

diction effectual, and authorize the court to proceed in the action, notice to parties interested in the property must be given as required by law.'

12. JURISDICTION OF THE SUBJECT-MATTER.-The subjectmatter of an action is the matter in controversy between the parties, and may be real or personal property, money, or some equitable relief. It is "the cause, the object, the thing in dispute." 2

Actions affecting title to real estate are local in their nature, and must be brought in the court having jurisdiction over the territory within which the land is situate.3

Courts will take judicial notice of the boundaries of a county and of the location of lands described by government subdivisions as by township, range, and section, and the legal subdivisions thereof; and if the description by such subdivisions shows the land to be within the county where the action is brought this is sufficient; but the pleading should allege in terms that the land is situate in the county. The jurisdiction of the court, if one of general jurisdiction, will be presumed, however, and unless it affirmatively appears by the description that it is out of the territorial jurisdiction of the court the fact must be shown by answer.

Jurisdiction of the subject-matter can not be given or enlarged by consent of parties."

It is held that "where the jurisdiction of the court as to the subject-matter has been limited by the constitution or the statute, the consent of parties can not confer jurisdiction. But when the limit regards certain persons, they may,

1 Post, sec. 14.

2 Bouv. Law Dic., title, Subject-matter; Callen v. Ellison, 13 Ohio St. 446; 82 Am. Dec. 448.

3

Campbell v. West, 86 Cal. 197; 24 Pac. Rep. 1000.

4 Campbell v. West, 86 Cal. 200; 24 Pac. Rep. 1000; Wilcox v. Moudy, 82 Ind. 219.

5 Ante, sec. 11; Freeman on Judg., sec. 120; Doctor v. Hartman, 24 Ind. 221; Damp v. Town of Dane, 29 Wis. 419, 431; Dicks v. Hatch, 10 Ia. 380; Fleischman v. Walker, 91 Ill. 318; Cooley's Const. Lim., 5th ed., 495; Elliott's App. Pro., sec. 13.

if competent, waive their privilege, and this will give the court jurisdiction." 1

The pleadings necessary to show and call for the exercise of jurisdiction by a court that would, if proper pleadings were filed, have jurisdiction of the subject-matter, may, in most of the states, be waived by consent of the parties, upon the presentation to the court of an agreed case, which takes the place of pleadings. But the statutes regulating this proceeding usually require a verified showing by the parties that the controversy between them is real, and the proceeding in good faith to determine the rights of the parties. If it appears that the purpose of such an agreed state of facts is to obtain a decision of a question not really in controversy between the parties, the court will not act. The required affidavit is necessary to give the court jurisdiction. But in order to give a court jurisdiction an action must be commenced.3 And the proceeding by way of an agreed case is no exception to the rule. The agreed statement of facts takes the place of the pleadings and process.

Whether an action for the specific performance of a contract to convey real estate is an action operating upon the real estate, or upon the person of the defendant, and whether the action is transitory or local is not clearly settled. Some of the codes provide that actions "for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest," shall be brought in the county in which subject-matter of the action, or some part thereof, is situated. In others it is specifically provided that the action may be brought in the county where the defendants or any of them reside."

the

Gray v. Hawes, 8 Cal. 568.

21 Work's Ind. Prac. & Pl., sec. 249; Godfrey v. Wilson, 70 Ind. 58; Union Coal Co. v. City of La Salle, 26 N. E. Rep. 506; Town of Plainfield v. Village of Plainfield, 67 Wis. 525; Myers v. Sawyer, 99 Ind. 237 ; Elliott's App. Pro., sec. 223.

Ex parte Cohen, 6 Cal. 320.

4 Code Civil Pro. Cal., sec. 392; Rev. Stat. of Ind., 1881, sec. 307.

Rev. Stat. Ohio, 1886, sec. 5024; An. Stat. Neb., 1881, p. 245, sec. 84.